Metropolitan News-Enterprise


Tuesday, September 29, 2009


Page 1


Court of Appeal Throws Out Class Action Against DIRECTV


By STEVEN M. ELLIS, Staff Writer


A man who claims satellite television provider DIRECTV used false advertising to induce subscribers to purchase more expensive “high definition” services cannot proceed with a class action, this district’s Court of Appeal held yesterday.

Ruling that members of the proposed nationwide class did not share a commonality of interests because their rights could vary from state to state and because many subscribers did not rely on the alleged falsehoods, Div. Eight in an unpublished opinion upheld a trial court’s order denying class certification.

Lower Resolution Alleged

Philip K. Cohen sued DIRECTV in 2004 under California’s Consumer Legal Remedies Act and Unfair Competition Law, alleging that the company switched its HDTV channels to a lower resolution, reducing the quality of television images transmitted to subscribers.

A subscriber since 1997, Cohen in 2003 upgraded to DIRECTV’s “HD Package,” which the company advertised as delivering higher quality images than its basic service. However, the package required payment of an additional monthly fee and the purchase of equipment costing, in some instances, more than $1,000.

Cohen claimed that DIRECTV “represented that channels in its HD Package are broadcasted in the…1920x1080i standard and at 19.4 Mbps, which they are not,” and that the company advertised the package without intending to provide broadcasts at those levels.

The company initially moved to compel arbitration, but the trial court concluded that an arbitration clause in DIRECTV’s customer agreement was unconscionable and the Court of Appeal affirmed.

Cohen then in 2007 sought certification of a class defined as “Residents of the United States of America who subscribed to DIRECTV’s High Definition Programming Package,” but Los Angeles Superior Court Judge Peter D. Lichtman denied the motion.

Proposed Class

Lichtman ruled that the proposed class was not ascertainable because Cohen included subscribers who had not relied on allegedly false advertising, and that the class lacked commonality for the same reason. He further determined that a nationwide class action “would be difficult at best,” noting that less than 20 percent of DIRECTV’s HD subscribers resided in California.

Characterizing the decision as a “death knell” to his case, Cohen appealed, and Justice Tricia A. Bigelow agreed that an ascertainable class existed.

“The defined class of all HD Package subscribers is precise, with objective characteristics and transactional parameters, and can be determined by DIRECTV’s own account records,” she wrote. “No more is needed.”

But Bigelow rejected Cohen’s contention that common issues of law would predominate over applicable law governing individual class members, noting that he did not meaningfully challenge the trial court’s conclusion that subscribers’ legal rights might vary from state to state and that non-California subscribers might not be protected by the CLRA and UCL.

She also opined that common issues of fact would not predominate as a matter of law over individualized issues, explaining:

 “[T]he class would include subscribers who never saw DIRECTV advertisements or representations of any kind before deciding to purchase the company’s HD services, and subscribers who only saw and/or relied upon advertisements that contained no mention of technical terms regarding bandwidth or pixels, and subscribers who purchased DIRECTV HD primarily based on word of mouth or because they saw DIRECTV’s HD in a store or at a friend’s or family member’s home.

“In short, common issues of fact do not predominate over Cohen’s proposed class because the members of the class stand in a myriad of different positions insofar as the essential allegation in the complaint is concerned, namely, that DIRECTV violated the CLRA and the UCL by inducing subscribers to purchase HD services with false advertising.”

Acting Presiding Justice Laurence D. Rubin and Justice Madeleine Flier joined Bigelow in her opinion.

The case is Cohen v. DIRECTV, Inc., B204986.


Copyright 2009, Metropolitan News Company